Do You Play Offense or Defense?

Posted on Categories Legal Writing

I’m just finishing two weeks of conferences with my students; we have been working through the drafts of their first trial briefs.  One of the topics we have been talking about is how to effectively incorporate counter-analysis in a principal brief. 

Before we broke for conferences, we talked about counter-analysis in class.  I tried to impress upon students that they cannot be effective advocates simply by making their own affirmative arguments and ignoring their opponent’s likely arguments.  Instead, they need to anticipate their opponent’s likely arguments and address those arguments as well.  I get little to no push-back from the students on that point; they can see the benefit of trying to neutralize opposing arguments from the outset rather than allowing the opponent to control the arguments in the response brief. 

Where students and I sometimes disagree, however, is about how best to approach counter-analysis. 

We talk about assertive and defensive approaches, and we look at various examples of assertive and defensive analysis as a class.  Defensive counter-analysis first sets out the opponent’s argument and then knocks it down.  Playing defense might look something like this:

Defendant will assert that under Thing, Plaintiff cannot recover because the Plaintiff was required to perceive the event that caused the victim’s injury, not simply the consequences of that event.  Defendant will argue that here, just as in Thing, the Plaintiff perceived the consequences of the injury-producing event but did not perceive that event itself.  Defendant’s argument is misplaced, however, because unlike the car accident in Thing, which began and ended in an instant, here, the event was ongoing, and the Plaintiff witnessed at least part of that event. 

The other option is to address the opponent’s arguments in a more assertive way: to play offense rather than defense.  For example, the argument might look like this:

Under Thing, the Plaintiff can recover as long as she perceived at least some part of the event that caused the victim’s injury; Thing bars recovery only when the plaintiff arrived after the event had ended and witnessed just its consequences.  Here, the event that caused the victim’s injuries was ongoing, and the Plaintiff perceived part of that event.  Thus, . . . . 

I feel strongly that the assertive approach is more persuasive.  First, in a principal brief, you can never be certain what arguments your opponent will make.  The last thing you want to do is make the opponent’s arguments more articulately and convincingly than your opponent might.  Second, the principal brief is a place for telling your client’s version of the story, and to the extent that you can neutralize “bad” authority in the context of that story, you’re more likely to persuade.

A number of students, however, disagree with me every year.  They tell me that they like the “set ‘em up and knock ‘em down approach” even if it is more defensive. Given the number of practitioners’ briefs I have read that employ this approach, I have to conclude either that a number of practitioners agree or that they simply don’t consider the difference.  I wonder whether this preference for the more defensive approach comes from reading judicial opinions.  In an opinion, it makes sense for the court to set out the parties’ arguments and then indicate why it rejects one of those arguments.

So what about you? Do you play offense or defense?

6 thoughts on “Do You Play Offense or Defense?”

  1. Here’s my problem with your offense vs. defense approach: it seems to only work when you’re writing briefs (which may seem like an obvious moot point, but I figure you’re talking about arguments in general rather than purely written ones). In my Trial Advocacy classes, one of the first things we’re taught is not to say something like, “My opponent is going to tell you that X.” If opposing counsel says nothing about X, it’s not going to look like he slipped up; it’s going to look like you lied to the jury or the court. It doesn’t even matter that, realistically, no one heard that and assumed you were stating a fact; they’ll still feel betrayed.

    In doing trial prep and writing motions, I prefer to play (to continue the sports analogy) a “bend but don’t break” defense. In other words, I like to prep to anticipate the vast majority of the counter-arguments that my opposition will make so as to be ready in case they use it. However, I also like to keep my mouth shut and wait and see what they ACTUALLY argue. Granted, all my internships have been defense-side work, so it’s easier there to get the last word in. But it’s been my experience that in court you’ve got a very limited amount of time to make your point to the judge and/or jury, so it’s best to stick to bullet points and play the “why are you right regardless of what argument the other side makes?” game until such time as a point’s made that you need to refute.

  2. I typically went for an “offense”-style approach in practice that went something like this: immediately after concluding my strongest arguments, I begin a new paragraph. “Thing is not to the contrary,” or “Thing held that [something I don’t want]. However, Thing is inapposite here.” It just seems punchier, and shorter.

    Also, it’s not just opposing counsel you have to worry about. You have to worry about the judge’s reaction as he or she reads it. I find myself reading other people’s briefs/articles occasionally and wondering, “What about obvious counter-argument X?” The longer I wonder this, the more annoyed I get with the author. That’s not something you want to have happen to the judge as they read your brief.

  3. Andrew,
    My post was really about how to address counter-arguments in writing, and even more specifically, in a principal brief. When you have a pretty good idea that there are particular authorities that are problematic for your client and helpful for the opponent, I think it is most often a mistake to ignore them in the principal brief and address them only in a reply brief.

  4. Alison, I agree 100% with you and always felt in my twelve years as a commercial litigator in NYC that explaining why you are right is far more effective than arguing why the other side is wrong. And why the other side is wrong can almost always be posed in terms of why you are right. The closest I’d let myself get to articulating the other side’s argument would to sometimes at the end of the paragraph(s) making my point, I’d then say, since my point is right, there could be no argument that . . .

  5. Alison,
    I also strongly agree with you that it’s best to stay on the offensive in a moving party’s brief. Strategically, the moving brief has the strength of position, which gets weakened if a party goes on the defensive. I also would hesitate to characterize an opponent’s arguments before reading them in a brief.

  6. I want to learn how to argue. I was told that the defensive way is wrong the approach. I was informed to be on the offense. In a typical argument how do you play the offense?

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